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DISCRIMINATION - Family status - Workplace discrimination - Hours of work

Tuesday, June 29, 2021 @ 5:49 AM  

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Appeal by the employer from a decision setting aside an Arbitration Board’s award that dismissed a nurse’s grievance based on discrimination due to family status. The nurse worked four 12-hour shifts followed by four days off in the emergency department of a major acute care hospital. As her husband also worked shifts, she was not required to incur child care costs. Two years later, the nurse was informed that her shift would change to become compliant with the Collective Agreement. The hospital denied the nurse’s request to stay in her current shift to accommodate her childcare obligations. She then moved into a casual position. To determine prima facie discrimination, the Board determined that it preferred the test set down in Johnstone, which provided that it was only if the employee had sought out reasonable alternative childcare arrangements unsuccessfully and remained unable to fulfil his or her parental obligations, that a prima facie case of discrimination would be made out. The Board held that while the nurse considered childcare options, she did not discuss with her husband the possibility of sharing a nanny or hiring childcare providers to cover overlaps. The Board majority concluded that as a result, the nurse did not seriously consider any option that would involve any cost. The reviewing judge held that the Supreme Court of Canada’s jurisprudence left no room for an articulation of the prima facie discrimination test that added an additional evidentiary requirement on a complainant. He held the Board’s failure to reconcile the Johnstone approach which elevated the burden of proof on the nurse with any Supreme Court jurisprudence was not reasonable, transparent or intelligible.

HELD: Appeal dismissed. The reviewing jJudge did not err in finding the test for prima facie discrimination precluded any requirement to prove self-accommodation by the claimant. The Supreme Court’s succinct three-part test in Moore provided certainty and uniformity to a core aspect of fundamental human rights law and was the appropriate test for all cases of discrimination. The reviewing judge did not err in determining that the Board decision unreasonably followed Johnstone in importing an additional requirement into the test for prima facie discrimination in family status cases. This additional requirement, which put a further burden on a family status claimant to prove an element of self-accommodation which was not present in other discrimination matters, was not in line with authority from the Supreme Court of Canada. There was no legal justification for the imposition in Johnstone of an additional, burdensome element of proof on family status claimants at the prima facie discrimination stage. Imposing a more onerous self-accommodation burden in this manner perpetuated, rather than ameliorated, human rights inequality. The reviewing judge reasonably concluded that fairness and the appearance of impartiality required the matter be remitted back to be heard before a freshly constituted arbitration board. There was no practical reason why an arbitration board comprised of different arbitrators could not be appointed to deal efficiently with all matters in issue in accordance with this court’s guidance.

Alberta Health Services v. United Nurses of Alberta, [2021] A.J. No. 717, Alberta Court of Appeal, B.L. Veldhuis, T.W. Wakeling and F.L. Schutz JJ.A., May 25, 2021. Digest No. TLD-June282021003